“Undeniably, the disputes relating to Intellectual Property may look like private in nature, but in reality, most of the times these also involve elements of public interest.” -Justice D N Patel, Honourable Chief Justice of the Delhi High Court
26th February 2022 was a momentous day at the DRDO Bhawan, New Delhi as it was the venue for the National Seminar on ‘Adjudication of IPR Disputes in India’ organised by the Delhi High Court. The idea behind conducting the event was to put the spotlight on the need for a uniform system for dealing with IPR matters. In addition to the Honourable Chief Justice of India, Justice N.V. Ramana, being the Chief Guest and the Finance Minister, Mrs. Nirmala Sitharaman the Guest of Honour, the seminar was attended by various esteemed members of the legal fraternity including Judges from the Supreme Court and High Courts, Judicial Officers, Counsels, members of the Bar and the IP community. The recording can be viewed here.
The abolishment of the Intellectual Property Appellate Board (IPAB) passed the baton of jurisdiction to the High Courts. Keeping this in mind, a Committee comprising of Justices Pratibha M Singh and Sanjeev Narula was formed to work on the nitty-gritties of hearing IPR matters in the Delhi High Court. This led to the establishment of the Intellectual Property Division (IPD) in the Delhi High Court and the formulation of the Delhi High Court Intellectual Property Rights Division Rules. Talking about the establishment of the IPD, Justice D N Patel remarked that this move will create a speedy mechanism for IPR disputes and maintain consistency and clarity to avoid multiplicity of proceedings.
“This is the time to recalibrate IP adjudication.” – Honourable Mrs Justice Pratibha M Singh
Honourable Mrs Justice Pratibha M Singh spoke about the background and vision of the IPD. She observed that an IP-friendly adjudication regime would encourage local businesses and also recognise foreign IP-owners. Further, she pointed out the conception that the IP field is an elitist and sophisticated field meant for the rich is misplaced. On the contrary, statistics show that a majority of IP filings belong to domestic businesses and inventors. A uniform IP adjudication system can be created by interlinking IP Courts and the Commercial Courts with the IPD in various High Courts, thus paving the path for quick and transparent proceedings. Remarking on the dearth of empirical analysis of the trends in IP decisions emerging from India, the Honourable Judge suggested the creation of a national repository of IPR decisions for ready access and dissemination.
Finance Minister Mrs Nirmala Sitharaman presented impressive statistics related to IP filings and grants, which showed the strength of the economy in supporting IP and innovation. She commented on how a supportive IPR system will have a strong ripple effect on the economy. She also threw light upon the role played by the government in promoting start-ups, innovation and R&D, which has led to generating more IP. Additionally, she brought to the attendees’ attention the Pilot Scheme for Intellectual Property Protection. Through this Scheme, the costs to be paid by the facilitators is borne by the Government through the Office of the Comptroller General. Introduced in 2016, this Scheme has been extended up to 2023.
“Innovation, and that too quick innovation has become the order of the day” – Honourable CJI Justice N.V. Ramana
Honourable CJI Justice N.V. Ramana spoke about the omnipresent nature of IPR and how the Indian judiciary is no stranger to IPR. He remarked that India’s title of being the ‘pharma hub of the globe’ is largely attributable to the country’s IPR regime. He also highlighted the significant role played by the IPR regime in the arenas of farming and geographical indications.
The Panel Discussion
“Establishment of IPD is not a competition between High Courts.” – Honourable Justice Gautam Patel
Honourable Justice Mrs Pratibha Singh moderated the discussion on ‘Adjudication of IPR Disputes in India’. The panellists included Justice Sonia G Gokani from the Gujarat High Court, Justice Soumen Sen from the Calcutta High Court, Justice Gautam Patel from the Bombay High Court, Justice M Sundar from the Madras High Court and Justice Sanjeev Narula from the Delhi High Court. Each Judge spoke about the jurisdiction of their respective High Courts and the increase in the number of cases since the abolishment of the IPAB. They lauded the Delhi High Court’s initiative of establishing IPD and agreed that it must be a template that should be modified by the High Courts as per their requirements.
Regarding the question of whether judges must necessarily possess technical qualifications to deal with IPR matters, the unanimous view was that it need not be a pre-requisite; technical assistance and enthusiasm to learn will suffice. Honourable Justice Gautam Patel emphasized on a rather thought-provoking point that IP litigation is not luxury litigation, but survival litigation. Another prevalent issue is the time taken to dispose off IPR matters. Honourable Justice M Sundar commented that Order XVA and Order XIII- A of the Civil Procedure Code, 1908 (as amended by the Commercial Courts Act, 2015) are the handiest tools for speedy disposal of cases.
The panellists also discussed the prime topic of the culture of awarding damages in IPR disputes. They were of the view that judges must not shy away from imposing huge damages. Interestingly, the Delhi High Court Intellectual Property Rights Division Rules provide that the Court may take the assistance of an expert to compute damages. Going beyond calculating damages, the Rules also contain provisions related to maintaining a panel of experts to assist the Court in the relevant subject matter. Honourable Justice Pratibha Singh brought up an intriguing idea of whether a common panel comprising of scientific experts from India as well as abroad can be formed for all IPDs. This suggestion was well-received by the panellists. The discussion then moved on to the elements of human rights and public interest in IPR matters and there was a general consensus that these elements must not be ignored. The panel discussion ended with Honourable Justice Gautam Patel’s relevant suggestion that there must be a mandate for intra-court appeal in the interest of litigants.
The National Seminar gave a glimpse into the road ahead for IP jurisprudence in India. Although there are miles to go, the establishment of the IPD and formulation of the Rules is most definitely a step ahead in the right direction.